Citation Nr: 9901614
Decision Date: 01/22/99 Archive Date: 02/01/99
DOCKET NO. 97-08 075 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder.
2. Entitlement to an increased evaluation for actinic
keratosis, currently rated 10 percent disabling.
3. Entitlement to an increased evaluation for chondromalacia
of the right patella, currently rated 10 percent disabling.
4. Entitlement to compensable evaluation for residuals of a
fractured right clavicle.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. S. Freret, Counsel
INTRODUCTION
Review of the claims file reflects that the appellant had
active military service from September 1981 to November 1992,
and had unverified active duty prior to September 1981.
This appeal comes before the Board of Veterans’ Appeals
(Board) from a rating decision by the Department of Veterans
Affairs (VA) Atlanta, Georgia, Regional Office (RO).
In a May 1997 statement (VA Form 21-4138), the appellant
withdrew claims of entitlement to service connection for
arthralgia of the left knee, degenerative joint disease of
the second metatarsalphalangeal of the right foot, and a left
foot disorder, and entitlement to an increased evaluation for
residuals of a right ankle injury.
The claims of entitlement to increased evaluations for
chondromalacia of the right patella and residuals of a
fractured right clavicle are the subjects of a remand that
follows the Board’s decision as to the other issues currently
on appeal.
FINDINGS OF FACT
1. There is no competent evidence of a nexus between the
appellant’s current anxiety reaction and inservice disease or
injury.
2. The appellant’s actinic keratosis is manifested by
constant itching.
CONCLUSIONS OF LAW
1. The appellant has not submitted a well-grounded claim for
service connection for an acquired psychiatric disorder. 38
U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R.
§ 3.303(d) (1998).
2. The schedular criteria for a 30 percent evaluation for
actinic keratosis are met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, Diagnostic Codes 7819, 7806 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A claimant filing for VA benefits has the duty to submit
evidence that must "justify a belief by a fair and impartial
individual" that the claim is plausible, and, therefore, well
grounded. 38 U.S.C.A. § 5107(a). A claim is not well
grounded if the claimant fails to present such evidence.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary
assertions by the claimant must be accepted as true for the
purpose of determining if a claim is well grounded, except
where such assertions are inherently incredible or beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19 (1993).
I. An Acquired Psychiatric Disorder
For a claim of service connection to be well grounded, there
must be competent evidence of current disability, of the
incurrence or aggravation of a disease or injury during
service, and of a nexus between the inservice injury or
disease and the current disability. That is, an injury
during service may be verified by competent medical or lay
witness statements; however, the presence of a current
disability requires a medical diagnosis; and, where an
opinion is used to link the current disorder to a cause or
symptoms during service, a competent opinion of a medical
professional is required. Caluza v. Brown, 7 Vet. App. 498
(1995).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. §§ 1110, 1131. Regulations also
provide that service connection may be established where all
the evidence of record, including that pertinent to service,
demonstrates that the veteran’s current disability was
incurred in service. 38 C.F.R. § 3.303(d).
The Board has carefully reviewed the evidence of record to
determine if there is a well-grounded claim for service
connection for an acquired psychiatric disorder. The first
element required to show a well-grounded claim is met because
the medical evidence shows that the appellant has been
diagnosed with anxiety reaction at VA psychiatric
examinations conducted in March 1995 and June 1995. The
second element of Caluza is also met because the appellant
has stated that he experienced problems with nervousness
during service. However, the third element of a well-
grounded claim is not met because the appellant fails to show
the required nexus between his current anxiety reaction and
any injury or disease in service. There is no medical
evidence establishing a link of the anxiety reaction to the
appellant's active military service. See Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); Franko v. Brown, 4
Vet. App. 502, 505 (1993).
Medical diagnoses involve questions that are beyond the range
of common knowledge and experience. Rather, they require the
special knowledge and experience of a trained medical
professional. Although the appellant has presented
statements and testimony regarding his nervousness, the
record does not show that he is a medical professional, with
the training and expertise to provide clinical findings
regarding any etiological relationship of his anxiety
reaction to service. Consequently, his lay statements, while
credible with regard to his subjective complaints and
history, are not competent evidence for the purpose of
showing a nexus between current complaints and service. See
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993).
Based upon the foregoing, the Board concludes that the
appellant has failed to meet his initial burden of presenting
evidence that his claim for service connection for an
acquired psychiatric disorder is plausible or otherwise well
grounded. Therefore, it must be denied.
Where the veteran has not met his initial burden, VA has no
duty to assist him in developing facts pertinent to his
claim, including no duty to provide him with a medical
examination. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski,
2 Vet. App. 141, 144 (1992) (where the claim was not well
grounded, VA was under no duty to provide the veteran with an
examination). However, in the limited circumstances where a
claim for benefits is incomplete, and references other known
and existing evidence, VA is obliged under 38 U.S.C.A.
§ 5103(a) to advise the claimant of the evidence needed to
complete his application, and this duty must be based on the
facts of each case. See Robinette v. Brown, 8 Vet. App. 69,
80 (1995). In this case, the RO substantially complied with
this obligation in the statement of the case issued in
October 1995. Unlike the situation in Robinette, he has not
put VA on notice of the existence of any specific evidence
that, if submitted, could make this claim well grounded.
Although the RO did not specifically state that it denied the
appellant’s claim for service connection for an acquired
psychiatric disorder on the basis that it was not well
grounded, the Board concludes that this error was not
prejudicial to him. See Edenfield v. Brown, 8 Vet. App. 384
(1995). Accordingly, the Board denies the appellant’s claim
for service connection for an acquired psychiatric disorder
as not well grounded.
II. Actinic Keratosis
Generally, claims for increased evaluations are considered to
be well grounded. A claim that a condition has become more
severe is well grounded where the condition was previously
service connected and rated, and the claimant subsequently
asserts that a higher rating is justified due to an increase
in severity since the original rating. Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992).
The Board is satisfied that all relevant facts pertaining to
the appellant’s claim for an increased evaluation for his
service-connected actinic keratosis have been properly
developed. There is no indication of any additional
pertinent records which have not been obtained. No further
assistance to the appellant is required to comply with the
duty to assist mandated by 38 U.S.C.A. § 5107.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
The percentage ratings in the SCHEDULE FOR RATING DISABILITIES
represent as far as can practicably be determined the average
impairment in earning capacity resulting from such
disabilities and their residual conditions in civil
occupations. 38 C.F.R. § 4.1. Moreover, each disability
must be considered from the point of view of the veteran
working or seeking work. 38 C.F.R. § 4.2. Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Service medical records show that the appellant was treated
for actinic keratosis and seborrheic keratosis in July 1991
and November 1991.
Subsequent to service, the appellant underwent a VA
dermatology examination in March 1995. At that time, he
complained of lesions on his hands, arms, and scalp, that
would get pretty bad in the summer, and he reported that his
skin itched. Physical examination revealed no lesions on the
face, but there were hyperkeratotic lesions on the dorsal
surfaces of the hands. There was also an erythematous,
slightly raised, lesion on the nuchal area of the neck. The
diagnoses were actinic keratosis on the upper extremities and
suspected basal cell carcinoma on the nuchal area of the
neck.
The appellant complained of constant itching associated with
his skin lesions at the March 1995 VA psychiatric
examination.
At a June 1995 VA dermatology examination, the appellant
complained of actinic keratoses on his hands and face and
itching that affected his arms and was seasonal. He reported
that his skin condition was constant. An ulcerated and
eschar covered lesion was noted on the dorsal surface of the
left hand. There were no active scalp lesions. The
distribution of the appellant’s skin disorder was noted to be
on the dorsal area of the hands and on the scalp. Color
pictures of the appellant’s skin disorder were associated
with the examination report.
Service connection was granted for actinic keratosis by a
December 1993 rating decision, which assigned a
noncompensable evaluation under Diagnostic Code 7819 from
December 1, 1992. An August 1995 rating decision assigned a
10 percent evaluation from January 5, 1995.
Benign new skin growths, unless otherwise provided, are rated
as for eczema under Diagnostic Code 7806, dependent upon
location, extent, and repugnant or otherwise disfiguring
character of manifestation. 38 C.F.R. § 4.118, Diagnostic
Code 7819.
When eczema is manifested by ulceration or extensive
exfoliation or crusting, and systemic or nervous
manifestations, or is exceptionally repugnant, a 50 percent
evaluation is assigned. If there is constant exudation or
itching, extensive lesions, or marked disfigurement, a 30
percent evaluation is assigned. With exfoliation, exudation
or itching, if involving an exposed surface or extensive
area, eczema is assigned a 10 percent evaluation. 38 C.F.R.
§ 4.118, Diagnostic Code 7806.
Inasmuch as the evidence presented in this case appears to
demonstrate that the appellant experiences constant itching
associated with his actinic keratosis, the Board finds that
the criteria for a 30 percent evaluation for the skin
disorder are met. However, because the evidence does not
demonstrate that there is ulceration or extensive exfoliation
or crusting or exceptional repugnance associated with the
appellant’s actinic keratosis, an evaluation greater than 30
percent is not warranted for the skin disorder.
ORDER
The claim for service connection for an acquired psychiatric
disorder is denied.
A 30 percent evaluation is granted for actinic keratosis,
subject to the laws and regulations governing the award of
monetary benefits.
REMAND
At a September 1998 videoconference hearing, the appellant
and his representative indicated that his service-connected
right knee disability had been treated/examined and X-rayed
at a VA medical center (VAMC) in December 1997. However, the
appellant’s claims file does not currently include those
medical records.
The Board notes that the appellant’s right clavicle disorder
was last examined in February 1993. In a January 22, 1997,
statement (VA Form 9), the appellant reported that he
experienced limitation of movement in his right shoulder that
resulted in functional impairment.
VA has a duty to assist a veteran in the development of facts
pertinent to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R.
§ 3.103(a). The United States Court of Veterans Appeals
(Court) has held that VA's “duty to assist” includes
helping the veteran obtain facts and evidence that might help
him to sustain his burden of proof or develop the facts of
his claim, once he has submitted a well-grounded claim.
White v. Derwinski, 1 Vet.App. 519 (1991). The Court has
also stated that when the Board believes the medical evidence
of record is insufficient it may supplement the record by
ordering a medical examination. Colvin v. Derwinski,
1 Vet.App. 171 (1991). Therefore, in order to obtain
additional medical evidence and to insure that the appellant
receives his procedural due process rights and fair process
rights, the Board finds that the claims for increased
evaluations for right knee and right clavicle disorders must
be remanded for the following actions:
1. The RO should contact the Decatur, Georgia,
VAMC for the purpose of obtaining all VA
medical records pertaining to the appellant,
any dated in December 1997. All records
received should be associated with the claims
file.
2. The RO should schedule the appellant for a
VA orthopedic examination to determine the
severity of his right knee and right clavicle
disabilities. The claims folder and a copy of
this remand must be made available to and
reviewed by the examiner prior to the
examination. He should be requested to
identify the ranges of motion in each joint and
should indicate what, if any, degree of
functional disability is associated with each
condition. The examiner should provide a
complete rationale for all conclusions reached.
3. The appellant should be advised of the
provisions set forth at 38 C.F.R. § 3.655(b)
regarding failure to report for scheduled VA
examinations.
4. The RO should review the claims folder and
ensure that all of the development action has
been conducted and completed in full. The
Court has held that, if the requested
examination does not include adequate responses
to the specific opinions requested, the report
must be returned for corrective action.
38 C.F.R. § 4.2 (“if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return the
report as inadequate for evaluation purposes
Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
The Board expresses its appreciation in advance to the RO for
its assistance in developing the requested evidence and
trusts that this development will be attended to in an
expeditious manner.
After the above requested actions have been completed, the RO
should review the appellant's claims. If the benefits sought
on appeal remain denied, a supplemental statement of the case
should be furnished to the appellant and his representative,
and they should be afforded the appropriate period of time to
respond. Thereafter, the case should be returned to the
Board for further appellate consideration.
The purpose of this REMAND is to obtain addition medical
evidence and to ensure that the appellant receives his due
process and fair process rights. No opinion, either legal or
factual, is intimated by this REMAND as to the merits of the
appellant's claims. No additional action is required by the
appellant until he receives further notification from VA.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266, a
decision of the Board of Veterans' Appeals granting less than
the complete benefit or benefits sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue that was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date that appears on the face of this decision
constitutes the date of mailing, and the copy of this
decision that you have received is your notice of the action
taken on your appeal by the Board. Appellate rights do not
attach to those issues addressed in the remand portion of a
Board’s decision because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).
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